MANAGING DISPUTE RESOLUTION
STRATEGY AND PROCESS

CD: What are some of the key
considerations for parties entering into a dispute resolution process in
today’s business environment? What factors should influence the choice of
dispute resolution method?

Duclercq: Today’s business environment
– and especially the financial crisis – has increased the parties’ concern for
the efficiency and costs of international dispute resolution. Although it was a
concern prior to the crisis, parties now tend to assess even more thoroughly
the costs and risks of commencing litigation or arbitration, and to favour
prior amicable resolution methods such as negotiation, mediation or
conciliation before bringing a formal action. As to the factors influencing the
choice of dispute resolution method, one should keep in mind that it might
often be the case where there is in fact no choice of dispute resolution method
– for instance, if the contract is unbalanced, the stronger party might impose
the method. In the event there is a real choice, several factors have to be
taken into account, including whether the parties are used to alternative
dispute resolution; whether they are from different countries – a neutral
institution might be preferable; the location of the facts of the case; whether
a public entity is involved in the dispute; the potential need for provisional
measures; and the difficulty of language barriers. An essential factor is also
the probability of enforcement and location of the assets of the other party
should the case be won.